PEC says it is unethical to ask defendants to waive a future claim of prosecutorial misconduct

By Gary BlankenshipSenior Editor

Despite objections from prosecutors, the Bar’s Professional Ethics Committee has ratified a proposed ethics advisory opinion which says plea bargains that contain waivers to prohibit any future claim of prosecutorial misconduct or ineffective assistance of counsel violate Bar rules.

The committee had approved the opinion for publication at its June meeting and the 23-7 vote at the committee’s September 21 gathering left it unchanged, clearing the way for an expected appeal to the Bar Board of Governors. If there is no appeal, the opinion is final.

Proposed Advisory Opinion 12-1 resulted from an inquiry from a defense lawyer on whether it was ethical to advise a client to accept a plea bargain that waived the defendant’s right to later raise a claim of ineffective assistance of counsel. The plea agreement also barred the defendant from any future claim of prosecutorial misconduct.

The committee deliberated on the issue for more than a year before adopting the advisory opinion. It received a barrage of input before and after publishing the proposed opinion, with prosecutors opposing it and defense attorneys supporting it. The response included a letter signed by all three U.S. attorneys in Florida saying the opinion is not needed, while all three federal public defenders signed a letter with other attorneys calling for final adoption of the opinion.

Seventeenth Circuit Judge Charles Greene, a member of the committee, said collateral appeals can show the defense attorney made mistakes or that the prosecution accidentally or otherwise withheld important information. In his experience, he had seen only one such plea waiver in 10 years of handling criminal cases, but that one case bothered him. He said it occurred in a retrial necessitated because the prosecution had overstepped in the original trial.

“The prosecution proposed a plea that the defense would be foolish not to accept,” Greene said, adding he was “ashamed” that he went along with the plea to spare witnesses and victims going through another lengthy trial in an emotional case.

“Justice wasn’t done,” Greene said. “I beg the committee to act [and approve the opinion] because the ethical implications of allowing individuals knowingly or inadvertently to shield themselves totally violates every standard of conduct the Constitution affords someone accused of a crime.”

Added Jason Korn, another committee member, “How does a lawyer recommend a client waive a claim of ineffective assistance of counsel . . . that would affect that counsel?”

But committee member Jay Hunston said the committee was going too far and making a policy decision because members think the waiver agreements don’t “feel” right. He noted that since the opinion was proposed, the U.S. attorney’s office for the Middle District of Florida had dropped the waivers from its plea agreements.

“The law is it’s legal. We’re supposed to decide it’s illegal and, therefore, we’re going to change that law by issuing an ethics opinion,” Hunston said.

He argued any ethical problems could be addressed by getting a second lawyer to advise the defendant on the waiver. He rejected claims that recommendation was impractical because of budgetary considerations. Hunston also said that Bar rules presume lawyers are ethical and will follow the rules.

“Our rules are based on the assumption that the lawyers of Florida are self-regulating, that we, in fact, know the ethical rules, and we will abide by them,” he said. “We are making, as a committee the assumption of wrongful conduct by our members, and I for one am not willing to make that base assumption — that every lawyer in the criminal defense bar is a wrongdoer and trying to cover things up.”

Hunston said it was wrong for the opinion to address prosecutors’ conduct because the committee is supposed to limit its responses to the conduct of the inquiring attorney. (Although the inquiring attorney is a defense counsel, he did ask about the prosecutor’s conduct, as well.)

Committee member Thomas Young agreed and said the opinion addressed a substantive law issue that would be better resolved with a case before the Supreme Court.

Carolyn Heck Miller, of the Southern District U.S. Attorney’s Office and a former member of the committee, said the panel was going too far, especially since plea agreements are overseen by the courts.

“It is not unethical for a prosecutor to act in ways that are allowed under law,” she added.

Committee member Skip Smith noted the committee’s charge is to address ethics, regardless of whether they are practical or convenient. He noted that under Bar Rule 4-1.7(a)(2) a lawyer cannot represent a client on an issue where the lawyer has a material interest, and the committee had decided that, under the rule, the waivers represent a conflict for defense lawyers.

“This committee has quite rightly concluded this is a conflict of interest under that rule. Period. I really haven’t heard any argument to the contrary,” Smith said. “I’ve heard arguments about the practical effects, about what the law is. We’re talking about what the ethics are.”

The proposed opinion notes that most states — with the exception of Texas — that have examined the issue have found the waivers impermissible either from a conflict of interest or malpractice standpoint. Texas held the lawyer must decide the issue case by case.

The opinion said while the waivers do not directly implicate the malpractice rule in 4-1.8(h), there is an indirect impact:

“A defense lawyer’s recommendation that a client waive a claim of ineffective assistance of counsel is akin to limiting malpractice liability, which is impermissible if the terms of the rule cannot be met.”

Defense lawyers do have a conflict under Rule 4-1.7(a)(2), the opinion said, because, “The lawyer has a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive . . . .”

As for prosecutors, “the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar,” the opinion said.

“The committee’s opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place.”